RECENT workplace relations commission (wrc) DECISIONS

Note: the establishment of the Workplace Relations Commission (WRC) on 1st October resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA). In addition to this the Labour Court has been reconfigured in order to hear appeals. With the recent commencement of publication of decisions by the WRC, the ERB newsletter will going forward cover decisions of the WRC.

Adjudication Decision Reference: ADJ-00000058 – An Employee vs An EmployerGrounds / Issues – Unfair Dismissal The Claimant commenced employment in July 2003 and submitted that he was dismissed over the phone by Mr. S on the 31st July 2015 over a row about his lunch break. The Claimant and his colleagues were asked by Mr. S to attend to a task at a particular location immediately. The Claimant had not eaten all day and travelled through town to grab a sandwich and a drink. The claimant received a call from Mr. S wondering why he was not at the location. He explained that he was getting a sandwich and that there would be a delay in any event as some of the staff did not have necessary materials as part of the work to be completed. He submitted that Mr. S said to him that he “was sick of Alan” 2 “that it was the end of the road“ and “that it wasn’t working out and that I don’t want you working”. The Claimant asserted that he was under no illusion but that he had been dismissed. The Claimant asserted that he attempted to contact Mr. S in an effort to resolve matters a few weeks later but he was advised that Mr. S was on leave – he asked Accounts for his P45 so that he could avail of Social Welfare.The Respondent denied that there had been a dismissal and submitted that there was never any intention on Mr. S’s part to dismiss the Claimant. Mr. S set out his account of his exchanges with the Claimant on the 31st July. When nobody showed up by lunchtime, he rang the Claimant and asked him could he not attend on site and eat later. He submitted that the Claimant responded that he had “enough of this” and “enough of the Respondent”. He contended that the Claimant asked for his P45. There was no formal dismissal or any documentation recording a dismissal and submitted that it was only when the Claimant sought his P45 that the employment was terminated.In issuing its decision the Adjudicator whilst noting the polarised accounts of the exchanges that took place between the Claimant and Mr. S, noted Mr. S admitted saying to the Claimant out of frustration “I was sick of this - this is not working out” in regard to their discussion of 31 July. In these circumstances the Adjudicator considered it was reasonable of the Claimant to consider himself dismissed. The Adjudicator further noted that in the absence of a contract of employment or grievance or disciplinary procedures, the Claimant was at a considerable disadvantage in terms of challenging what happened and although found that the Claimant contributed to the dismissal through his actions on the day was awarded compensation of €17,500.In this instance, the acknowledgement from the Respondent that it has been communicated to the Complainant that the employment relationship “was not working out” was key given the dispute in all other aspects of the sequence and nature of discussions and events. Given the failure to follow any form of fair disciplinary procedure by the Employer and given a question as to whether a dismissal was a fair and proportionate outcome, left the Employer with an uphill battle in seeking to successfully defend this particular claim.WRC Decision Partly UpheldAward of €2,000 to Employee who contributed 90% to his own Dismissal

Adjudication Decision Reference: ADJ-00000564 – An Employee vs an EmployerGrounds / Issues – Unfair Dismissal The Complainant was dismissed by the Respondent for gross misconduct and breach of trust between Employer and Employee. In September 2015 the Respondent was told he had to attend a meeting and was not given the reason. At the meeting the following day, he was asked if he had been clocked in by another Employee on some occasions. He admitted it happened on a couple of occasions when he was in a rush. The issue of a previous warning in July 2015 was held against him and the Complainant was dismissed. He appealed the decision but the decision to dismiss was upheld. It was submitted that the Respondent acted in an unreasonable manner in the first disciplinary situation and in breach of all fair procedures and natural justice by not informing the Complainant that the meeting was disciplinary in nature, by not giving him a written invitation to attend and not informing him that he was entitled to representation.In response the Respondent submitted that in September 2015, irregularities in the Complainant’s clocking were noted and it was found that the Complainant was clocked in when he was not physically on the site. On verification with the CCTV system, it was discovered that there were five occasions in August and September 2015 when the Complainant was clocked in but not present at the site. The Respondent outlined the details of an investigatory meeting which took place in September 2015 with the Complainant, the farm manager and the group HR manager. It was submitted the Complainant knowingly claimed hours worked which he did not work, instructed a junior Employee reporting to him to clock him in, and did this in the full knowledge that he was on a final written warning. He had shown a breach of trust in what was required of him as a Manager and was rightly issued with a letter of dismissal in September 2015.In determination of its decision, the Adjudication officer found that there had been a breach of trust and that re-instatement or re-engagement of the Employee was not appropriate. The Adjudicator found that the Complainant contributed 90% to the situation in which he found himself, and found that compensation in the sum of €2,000 was fair and reasonable in the circumstances of this case.Whilst the Claimant in this instance readily acknowledged that his own actions contributed towards a Company investigation and ultimately dismissal, questions marks raised concerning adherence to fair procedures and natural justice in a focus being spent on these failings at the hearing. By failing to advise the Complainant of the fact that a meeting to take place was in fact a disciplinary hearing for example, in line with the Code of Practice: Grievance and Disciplinary Procedures S.I. NO. 146 of 2000, ultimately left the Employer exposed with an award in favour of the Complainant being awarded.

The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.

The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).

In addition to this the Labour Court has been reconfigured in order to hear appeals.The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.

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